Why Perpetrators of Enforced Disappearance Should Be Limited to Agents of the State or Public Officers

· Enforced disappearance violates the fundamental rights to life and liberty which are enshrined in Article III (The Bill of Rights) of the Constitution in order to be protected.

In his sponsorship speech as Chair of the Committee on the Bill of Rights of the 1986 Constitutional Commission, Fr. Joaquin Bernas said:

“Protection against whom? Protection against the state. The Bill of Rights governs the relationship between the individual and the state. Its concern is not the relation between individuals, between a private individual and other individuals. What the Bill of Rights does is to declare some forbidden zones in the private sphere inaccessible to any power holder.”

· During the interpellation, Fr. Bernas reiterated that “the rights in a Constitution are protection against the government”. When asked if the “rights which protect the citizens against other private citizens” can be considered as a valid second category of constitutional rights, Fr. Bernas categorically answered, “I would not put that under the Constitution. That would be more of a matter for the Civil and Penal Codes”. He further underscored that “a private individual” who “injures another individual… is not covered by the Bill of Rights” but by “civil law and criminal law”. Elucidating, he made it clear that the Bill of Rights lists the rights of individuals vis-à-vis the state. What the Bill of Rights, he said, tries to prevent is the violation of these rights by the state and not by other individuals. As an example, he cited the provision which states that “no person shall be deprived of life”. He explained that this means non-deprivation of life by the state without due process of law; that if a person kills another person, it is a violation of the penal law, but not of the Bill of Rights.

· Fr. Bernas in fact rejected the proposal of Commissioner Natividad to add victims of violent crimes in the provision on compensation to victims of torture because such provision Fr. Bernas said “has reference to acts of public officers” while violent crimes can be committed by anybody. He emphasized the need for an implementing law more particularly with respect to compensation and rehabilitation, which he qualified as “compensation by the state and rehabilitation under state auspices”.

With respect to the inability of a person under investigation to afford himself the services of a lawyer, he stressed that it is the state that has the obligation to provide him with counsel.

· Limiting perpetrators of enforced disappearance to a particular class of persons is not violative of the equal protection clause as it is based on a substantial distinction.

Even the rule on the writ of amparo, a remedy available to “any person (whose right to life, liberty and security is violated or threatened with violation by an unlawful act or commission of a public official or employee, or of a private individual or entity)” makes a distinction between state and non-state respondents with respect to burden of proof and standard of diligence required. Proof of “ordinary diligence” only in the performance of duty is required of a private respondent, whereas a respondent who is a public official or employee must prove that “extraordinary diligence” was observed in the performance of duty. Moreover, the respondent public official or employee is prohibited from invoking the presumption of regularity in the performance of duty to evade responsibility or liability. The Supreme Court in its annotation to Section 17 of the Rule stated that the distinction is made (between a private and a public respondent) since “Public officials or employees are charged with a higher standard of conduct because it is their legal duty to obey the constitution, especially its protecting the right to life, liberty and security. The denial of the presumption that official duty has been regularly performed is in accord with current jurisprudence on custodial interrogation and search warrant cases.”

Moreover, non-state perpetrators operate outside the law and commit illegal acts because they do not recognize much less respect governmental authorities. Acts committed by these non-state actors that violate the basic rights of the people are already punishable under the Revised Penal Code and other existing laws.

· It is the element of the perpetrator’s being an agent of the state/public official or officers that primarily distinguish enforced disappearance from kidnapping and serious illegal detention which under the Revised Penal Code are committed by a “private individual”.

· Proponents of the inclusion of private individuals or non-state actors as perpetrators of enforced disappearance point to the Rome Statute of the International Criminal Court that, unlike the United Nations Declaration on the Protection of All Persons from Enforced Disappearance and the International Convention for the Protection of All Persons from Enforced Disappearance (adopted by the U.N. General Assembly on 18 December 1992 and on 20 December 2006, respectively), does not specify or limit perpetrators of enforced disappearance to agents of the state. For purposes of criminalizing enforced disappearance it is the Declaration and the Convention that should prevail since between specific and general, the former must prevail as it evinces the intent more clearly than the general.

· Moreover, it should be noted that the Rome Statute of ICC takes cognizance of enforced disappearance under Article 7 on Crimes Against Humanity and Article 8 War Crimes.

The Statute defines a “crime against humanity” as an act that is “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”; and a war crime as a grave breach(es) of the Geneva Convention of 12 August 1949.

· Most cases of enforced disappearance in the Philippines do not fall within the context of the Rome Statute as they are committed outside areas of armed conflict. The fate and whereabouts of the person/s arrested, abducted or detained are concealed to enable the perpetrators to escape culpability.

· Covering non-state entities will render the implementation of the anti-enforced disappearance law impractical more particularly with regard to the preventive mechanisms. For instance, how can the Commission on Human Rights conduct regular, independent, unannounced and unrestricted visits to or inspection of all places of detention and confinement of rebel groups or require them to maintain an updated register of detainees, or issue a written certification that they are holding or not holding a certain person in custody?